JUDGMENT : 1. Heard learned counsel for the appellant and learned Addl. PP for the State. 2. This appeal has been preferred by the appellant being aggrieved by the Judgment of conviction and order of sentence dated 17.1.2006 passed by 2nd Additional Sessions Judge, Jamshedpur in Sessions Trial No. 108 / 137 of 2005 whereby and whereunder, the appellant Sanjeev Kumar Sinha @ Pintu has been held guilty and convicted for the offences punishable under Section 354 of the IPC and sentenced to undergo RI for one year. 3. The brief fact of this case as unfolded in the written report by informant is that on 05.04.2004, while the informant, who is the husband of the victim, was not in his house, the appellant-accused made the victim to open the door of the house of the informant in the guise of drinking water and when the victim entered inside the house to bring water, the appellant-accused with an intention to commit rape, caught hold of the victim from behind. When the victim raised alarm, PW 3 and PW 4, who were in the other room of the house came there and on seeing them, the appellant –accused fled away from the back door. When the informant returned to his house, the victim narrated the occurrence to him and the informant reported the matter to police. On the basis of the written report, the police registered Telco (Govindpur) P.S. Case No. 59 of 2004 and took up the investigation of the case. Upon completion of the investigation, police submitted charge-sheet against the appellant-accused person having committed offence punishable under Sections 448/376/511 IPC. 4. The case was committed to the Court of Session and charges for the offence punishable under Sections 376/511 IPC were framed against the appellant-accused person and upon the appellant- accused person pleading not guilty to the charges, he was put to trial. 5. In support of its case, the prosecution altogether examined five witnesses including the Investigating Officer and also proved documents. No evidence was adduced on behalf of the appellant- accused person in his defence. 6. Out of the five witnesses examined by the prosecution, PW 2- Babita Devi is the victim. She has stated that the occurrence took place on 05.04.2004 between 11.45 AM to 12.00 noon. No evidence was adduced on behalf of the appellant- accused person in his defence. 6. Out of the five witnesses examined by the prosecution, PW 2- Babita Devi is the victim. She has stated that the occurrence took place on 05.04.2004 between 11.45 AM to 12.00 noon. On that day, at 9.30 AM, the appellant-accused person came to the house of PW2 and enquired about the presence of the husband of the PW2 in her house. On being intimated by PW2 that the husband of PW2 was taking breakfast, appellant-accused person went away telling that he will come later on. At 11.30 AM, appellant-accused person came and enquired about the husband of the PW2 and PW2 intimated him that her husband has gone to the clinic. At 11.45 AM, PW3 and PW-4 came to the house of PW 2 and PW2 made them to sit inside a room of the house. At that time, there was a knock in the western side of the back door of the house. PW2 opened the door and saw the appellant-accused person. The appellant-accused person again enquired about the husband of PW2 and PW2 intimated that he was not in the house. The appellant-accused person asked for water and as the PW2 went to some distance inside the house for bringing drinking water, the appellant-accused person came from behind and embraced the PW2 including both her hands, with his both hands. PW2 tried to get her extricate but she could not. PW2 raised alarm. On hearing the noise, PW3 and PW 4 came running from inside the house. On seeing them, the appellant-accused person fled away. PW2 further stated that appellant-accused person caught hold of her hands with intention to commit rape. In the process of the extricating herself from the clutches of the appellant-accused person, she sustained scratches on her abdomen and hand. After the occurrence, family members of the appellant came to the house of the informant and threatened to kill them. In her cross-examination, PW2 has stated that she stated before the police that when she came inside the house to bring water, the appellant-accused person came inside and with his both hands, he embraced PW2 including both her hands and then, she tried to extricate herself. She was not alone in the house. The PW4 was also there. In her cross-examination, PW2 has stated that she stated before the police that when she came inside the house to bring water, the appellant-accused person came inside and with his both hands, he embraced PW2 including both her hands and then, she tried to extricate herself. She was not alone in the house. The PW4 was also there. In paragraph 7, PW2 has stated that she showed the scratches on her abdomen and hand to police. 7. PW 3- Munna Devi has stated that the occurrence took place on 05.04.2004 at 11.45 AM. She and her husband- PW4 had gone to the house of PW2 to take the motorcycle. They were sitting inside the house. There was a knock at the back door. PW 2 went to open the door. PW3 heard the noise. PW 3 and PW 4 went running there and saw that the appellant-accused person was catching hold of the hands of the PW2. On seeing the PW3 and PW4, the appellant-accused persons ran way. There were scratches on the hands of PW2. In her cross-examination, PW3 has stated that in paragraph 9 that since son of PW3 was ill for that purpose, they went to borrow the motorcycle. Her son was ill before the occurrence and they administered the medicine to him in their house. They also got him examined by the doctor. They also know that the husband of PW2 being the PW1 is a doctor. She deposed in paragraph 10, that she does not remember whether she stated before the police that there were scratches in the hands of PW2. She knew the appellant since last six months prior to the occurrence but did not know him personally. 8. PW 4- Narendra Singh has stated that the occurrence took place on 05.04.2004 between 11.30 AM to 12.00 noon. He went with PW3 to the house of the PW2 to take their motorcycle. They were sitting in a room of the house. Two to four minutes thereafter, there was a knock at the door. PW 2 went to open the door and 2-3 minutes thereafter, she raised alarm. PW4 went running there. PW 4 was followed by PW3 also. He saw that the appellant-accused was catching hold of PW2 and PW2 was trying to extricate herself. On seeing PW4, the appellant-accused fled away. PW 2 went to open the door and 2-3 minutes thereafter, she raised alarm. PW4 went running there. PW 4 was followed by PW3 also. He saw that the appellant-accused was catching hold of PW2 and PW2 was trying to extricate herself. On seeing PW4, the appellant-accused fled away. In paragraph- 6 of his cross-examination, PW4 has stated that since he had to take his wife to her relatives, hence, he went to borrow the motorcycle. He stated before the police that when he went on hearing the noise, PW2 was trying to extricate herself. 9. PW 1- Updenra Kumar has stated that the occurrence took place on 05.04.2003 at 11.50 AM. He was in a bank. When he returned at about 12.15 PM, his wife PW2 informed him about the occurrence. In his cross-examination, he has stated that he resides on ground floor of the three storied LIG complex. After the occurrence, the appellant-accused person instituted a case against PW1. At the time of the occurrence, the appellant-accused person was not residing there. He did not want to purchase that house. His wife did not sustain much injury. There were scratches on her abdomen. In paragraph 14, he has deposed that he has stated before the police that the appellant-accused caught hold the hands of his wife. PW1 has not seen the occurrence. 10. PW5- Ashok Kumar Singh is the Investigating Officer of the case. He stated that on 05.04.2004, he was posted as Sub Inspector at Govindpur police station. The endorsement of the officer-in-charge of the police station on the fardbeyan on being proved by PW5, has been marked as Exhibit 1/1. He took up the investigation of the case on 05.04.2004 and recorded the re-statement of the informant. He went to the place of occurrence and he described the place of occurrence. The entrance of the house is towards west. On entering the house, there is drawing room and towards south, there is bed room. One small room is there towards east. There is one door to go out from that room and the said door opens to bounded open space fitted with grill and from the grill, there is exit for going to the road. The house of the appellant-accused person is adjacent north of the house of the PW2 and thereafter, there is open space. There is one door to go out from that room and the said door opens to bounded open space fitted with grill and from the grill, there is exit for going to the road. The house of the appellant-accused person is adjacent north of the house of the PW2 and thereafter, there is open space. He also recorded the statement of the victim and the witnesses and arrested the accused person. After the completion of the investigation, he submitted the charge-sheet in the case. In paragraph 14 of his cross-examination, he has stated that PW2 did not state before him that when she went to bring water, the appellant-accused person came from behind and embraced her including both her hands. She only told that she was caught hold from behind. She also did not say that she tried to extricate herself. In paragraph 16, PW5 has stated that PW2 did not show him the scratches on her hand and abdomen. 11. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded regarding the circumstances appearing in evidence against him, wherein he was asked a single material question as to whether he attempted to commit rape of the PW2 which he denied and pleaded innocence and of false implication. 12. Taking into consideration the evidence available in the record, learned court below convicted and sentenced the accused-appellant person as already indicated above. 13. Mr. A. K. Chaturvedy, learned counsel for the appellant submitted that learned trial court failed to appreciate the evidence in record in its proper perspective and erred by not considering the major contradictions and exaggerations in the testimonies of the witnesses and submitted that there is absolutely no evidence in the record that the appellant-accused person either assaulted or used any criminal force against PW2 intending to outrage her modesty. It is further submitted that learned court below failed to consider the contradictions between the testimonies of PW2 and that of PW5 being the Investigating Officer as though PW2 has stated that she showed scratches on her abdomen and hand to PW5 yet PW5 has categorically stated that PW2 did not show any such scratches to him. It is further submitted that learned court below failed to consider the contradictions between the testimonies of PW2 and that of PW5 being the Investigating Officer as though PW2 has stated that she showed scratches on her abdomen and hand to PW5 yet PW5 has categorically stated that PW2 did not show any such scratches to him. It is further submitted that learned court below erred by not taking into consideration that the presence of PW3 and PW4 that too in one of the room of the house of the victim when she has dedicated drawing room as is evident from the testimony of PW5, is highly improbable and learned court below also erred by ignoring the contradictions in the testimonies of PW3 and PW4 regarding the purpose for which, they had come to borrow motorcycle, though PW 3 has stated that they went to borrow motorcycle for taking their ailing son to the doctor yet the PW 4 stated that they wanted to borrow the motorcycle to go the relative of PW3. It is then submitted that the purpose of borrowing the motorcycle assumes importance because that was the sole explanation for the PW3 and PW4 being allegedly present at the place of occurrence and in view of this contradiction their presence at the place of occurrence is highly doubtful. It is further submitted that in the statement recorded under Section 313 Cr.PC, no question was put to the appellant- accused person by learned trial court regarding the evidence that he caught hold of the hand of the PW2, which evidence though not put to the appellant accused person by the trial court in his examination under section 313 Cr.P.C. yet the trial court erroneously used the evidence that the appellant accused person caught hold of the hand of the victim inside the house, for convicting the appellant accused person. It is then submitted that the examination of the appellant accused person under section 313 of the Cr.P.C is perfunctory as mechanically question was put by the trial court regarding the substance of charge though no such evidence is in the record. It is then submitted that the examination of the appellant accused person under section 313 of the Cr.P.C is perfunctory as mechanically question was put by the trial court regarding the substance of charge though no such evidence is in the record. It is lastly submitted that the prosecution has failed to put forth sufficient evidence to establish the commission of offence punishable under Section 354 IPC by the appellant-accused person and hence, it is submitted that the impugned judgment passed by the court below being not sustainable in law, be set aside and the appellant be acquitted of the offence punishable under Section 354 IPC by giving him the benefit of doubt. 14. Learned Addl. PP defended the impugned judgment and submitted that all the four material witnesses have stated about the appellant-accused person embracing and catching hold of hands of PW2 after entering inside her house and certainly, the same is sufficient to establish the offence punishable under Section 354 IPC against the appellant accused person, hence, learned court below having rightly convicted and sentenced the appellant, thus, this appeal being without any merit be dismissed. 15. Having heard submissions made at the Bar and after going through the record, I find that there are contradictions in the testimonies of the prosecution witnesses regarding the evidence that PW2 sustained scratches on her hand and abdomen. Though PW 2 has categorically stated in her testimony that she showed the scratches in her hand and abdomen to the Investigating Officer being PW5, but PW5 in paragraph 16 has categorically denied that the PW2 has ever shown any scratch to him. PW1 who is a doctor, has not stated about the scratches in the hand of the PW2. He has stated about the scratches only on the abdomen. The presence of PW 3 and PW4 at the time of occurrence also creates doubt. There is contradiction in the testimonies of PW3 and PW4 as to for what purpose, they wanted to borrow the motorcycle belonging to the family of the victim. Further, it is not a normal human conduct that when there is a dedicated drawing room in the house of PW2, why she made PW3 and PW4 sit in an inside room of her house instead of making them to sit in the drawing room. Further, it is not a normal human conduct that when there is a dedicated drawing room in the house of PW2, why she made PW3 and PW4 sit in an inside room of her house instead of making them to sit in the drawing room. As per the evidence put forth by the prosecution, the place of occurrence house was LIG house and the appellant-accused person entered some distance inside the house. So, it is highly unlikely that after entering into such a small house like a LIG house, the appellant accused person could not notice the presence of PW 3 and PW4 before the occurrence and in the nature of allegation made out against the appellant, it is highly unlikely that when the appellant was unarmed, he could have caused injury on the hand and abdomen of PW2 when there is absolutely no allegation of appellant-accused making any effort to remove any cloth of the PW2 and allegedly the intention of the appellant accused person was to commit a crime of passion. Further, the distance between the place of occurrence and the place where PW3 and PW4 were sitting, considering that the place of occurrence is a LIG house, which is small in size, must not be more than 10-15 feet at the most and the PWs 3 and 4 must have reached there almost immediately the appellant accused person having started any indecent activity and as there is no allegation against the appellant-accused of any intention of attempt to assault PW2, the testimony of PW2 that she sustained scratches, is certainly an exaggeration which is not commensurate with the story put forth by the prosecution. It is a settled principle of law that essential ingredients of offence punishable under Section 354 are as under:- (i) That the person assaulted must be a woman; (ii) that the accused must have used criminal force on her; and (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty. As has been held by Hon’ble Supreme Court of India in paragraph-22 of the case of S.P.S. Rathore vs. C.B.I reported in AIR 2016 SC 4486 . 16. As is evident from the testimony of PW5, the appellant accused person was just next door neighbor of PW2 and at the relevant time, the appellant accused person was not residing in the said house. 16. As is evident from the testimony of PW5, the appellant accused person was just next door neighbor of PW2 and at the relevant time, the appellant accused person was not residing in the said house. Suggestion has been given by defence that PW 1 wanted to purchase the house of the appellant accused person and for that, appellant accused person has been falsely implicated. PW 1 has admitted that the appellant accused person has also instituted a case against PW1 after the occurrence. In paragraph-7 of the case of Ram Das vs. State of W.B. reported in AIR 1954 SC 711 , Hon’ble Supreme Court has held that the intention or knowledge being the essential ingredient of the offence where an accused be tried for an offence under section 354 IPC and the prosecution succeeds in proving the assaults by the accused, the next question arise is to be considered that whether he did so with the intention to outrage the woman’s modesty. The only evidence against the appellant-accused is that he caught hold the hand of the PW2. There is no further evidence to indicate the purpose for which he held the hand of PW2. Hon’ble Supreme Court in the case of Rupan Deol Bajaj & Anr. vs. Kanwar Pal Singh Gill & Anr. reported in (1995) 6 SCC 194 held that ultimate test for ascertaining whether the modesty has been outraged with the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman. vs. Kanwar Pal Singh Gill & Anr. reported in (1995) 6 SCC 194 held that ultimate test for ascertaining whether the modesty has been outraged with the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman. When both the appellant-accused person and PW2 were known to each other and PW2 has no apprehension, even after the appellant-accused person allegedly visited her house thrice inquiring about the presence of her husband, just catching hold the hand of PW2 in the absence of any evidence, is same shocked the decency of PW2, more so when such question was not specifically put to the appellant accused person in his cross examination under Section 313 of the Cr.P.C., the considered opinion of the court, is certainly not sufficient, in view of the nature of the testimonies of the witnesses of the prosecution as already discussed above, to establish the ingredients of the offence punishable under Section 354 of the IPC against the appellant-accused and this is a fit case where the appellant-accused person- Sanjeev Kumar Sinha @ Pintu be acquitted by giving him the benefit of doubt. 17. Accordingly, the Judgment of conviction and order of sentence dated 17.1.2006 passed by the learned 2nd Additional Sessions Judge, Jamshedpur in Sessions Trial No. 108 / 137 of 2005 being not sustainable in the law, is set aside and the appellant Sanjeev Kumar Sinha @ Pintu is acquitted of the offence punishable under Section 354 IPC. Perusal of the record reveals that the appellant Sanjeev Kumar Sinha @ Pintu is in custody. In view of his acquittal, he is directed to be released from custody forthwith unless his detention is required in connection with any other case. 18. In the result, this appeal is allowed. 19. Let a copy of this Judgment be sent back to the Court concerned forthwith.